Kennedy-Van Saun Manufacturing and Engineering Corp.

KENNEDY-VAN SAUN MFG. AND ENGINEERING CORPORATION 575 meeting to call a special meeting on February 28, 1953, for the purpose of voting on disaffiliation from Local 1157, CIO. The February 28 meeting was also held in the AFL hall and attended by 3 representatives of the AFL, 2 of whom spoke on the motion to disaffiliate from the CIO. Forty of the Employer's seventy-seven employees in the unit covered by the Intervenor's contract, attended and voted unanimously to disaffiliate from Local 1157, CIO, and to affiliate with the AFL. Thereafter, on March 11, 1953, at a meeting called by the AFL, officers were elected and a charter was issued to its new Local 1157. The Petitioner contends that the foregoing events have given rise to such confusion and uncertainty with respect to the status of the bargaining representative at the Employer's plant as to warrant the Board directing an election at this time under the "schism doctrine." We do not agree. The disaffiliation meeting and the preliminary meeting thereto were held at the petitioning Union's hall, and it is clear that at all times repre- sentatives of the Petitioner actively assisted the dissident employees in their efforts at disaffiliation. From these facts, the Board concludes that the Petitioner's control over the dis- affiliation proceedings were of such nature as to preclude application of the schism doctrine.' Furthermore, the In- tervenor still functions and is ready, able, and willing to ad- minister the contract. Upon the basis of the foregoing and on the entire record in this case, we find that the current contract between the Intervenor and the Employers bars the determination of representatives at this time. Accordingly, we shall dismiss the petition. (The Board dismissed the petition.] 3See Bendix Products Division, Bendix Aviation Corporation, 98 NLRB 1180; Boyle-Midway, Inc., 97 NLRB 895. KENNEDY-VAN SAUN MANUFACTURING AND ENGINEER- ING CORPORATION and UNITED STEELWORKERS OF AMERICA, CIO, Petitioner. Case No. 4-RC-1930. June 12, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herbert B. Mintz, hearing officer. The hearing officer's rulings made at 105 NLRB No. 75 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the hearing are free from prejudicial error and are hereoy affirmed.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Peterson]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer and the Intervenor (Foundrymen, Machinists and Erectors Union) contend that a contract entered into be- tween them on January 2, 1952, with an expiration date of December 31, 1953, constitutes a bar to this proceeding. The Petitioner asserts that the contract is not a bar because it contains an alleged illegal union-security provision. The dis- puted provision reads as follows: III - UNION MEMBERSHIP AND RIGHT TO HIRE The right to hire any [employees] of any classification shall remain with the Employer, provided nevertheless, that no [employee] shall be employed by the said Company without first obtaining from the said prospective [employee] a written statement (a form to be prepared by the Union) agreeing that upon the passing of the probationary period or within thirty (30) days after becoming permanently employed that said prospective [employee] will become a member of the Union. The Company agrees to employ only persons in good standing in the Union, providing nevertheless, that the Company shall not be considered as violating this para- graph of the Agreement unless it employs a person not in good standing in the Union for more than thirty (30) days after receiving written notice from the Union that such person is not in good standing. ' The hearing officer referred to the Board the Employer's motion to dismiss the petition on the ground that the Regional Director set the case for hearing before an investigation was made as to the Petitioner's showing of interest The motion is hereby denied Although Section 9 (c) (1) of the Act specifies no more than that the petition shall allege that the union represents a substantial number of employees, the Board requires that the union informally submit proof of its claim prior to the hearing, for the purpose of screening out frivolous petitions The manner, method, and procedure employed by the Board in making such in- vestigation is a matter for administrative determination and we perceive no prejudice visited upon the Employer herein. In fact, the Regional Director conducted an investigation before the hearing, which was begun before the notice of hearing was issued, and we are satisfied that the Petitioner's showing of interest was adequate. See J. I. Case, Co , 95 NLRB 1493, enforced 201 F. 2d 597 (C. A. 9), Pacific Gas and Electric Company, 97 NLRB 1397 The Borden Company, 103 NLRB No 143. STURTEVANT MILL COMPANY 577 In support of its contention that the above clauses are unlawful because they do not conform to the union-security limitations imposed by Section 8 (a) (3) of the Act, the Petitioner argues that new and old employees are not given the required 30-day grace period in which to join the Intervenor. We do not agree. It is clear that the second paragraph gives all employees the re- quired 30 days for acquiring or retaining union membership before sanctions may be imposed for nonmembership in the Intervenor. The first paragraph requires all new employees, as a condition of employment, to signify their intention in writing to join the Intervenor upon the expiration of their first 30 days of employment. While this requirement is not specif- ically authorized by the Act, it is noted that the prospective employee is not required prematurely to pay dues or actually apply for membership; nor does he otherwise incur any obliga- tion incident to membership. Realistically viewed, the applicant for employment is prospectively agreeing only to abide by the contract, which provides that if his employment continues after the expiration of 30 days, he is required to join the Intervenor., In these circumstances, we do not find that the union-security provision constitutes an unlawful condition of employment. We therefore find that the contract operates as a bar to an imme- diate election and we shall dismiss the petition.3 [The Board dismissed the petition.] ,Cf. New Castle Products, Incorporated, 99 NLRB 811, wherein the Board held invalid a provision which required new employees to "signify their intention to become members [of the Union] by signing applications and becoming initiated," at the time of hiring. 3At the hearing the Petitioner also contended that the contract.is no bar because it in- cluded guards within the bargaining unit. We find no merit in this contention, as the record shows that guards are not included in the unit. Moreover, assuming the correctness of the Petitioner's claim, it is not sufficient to remove the contract as a bar. See American Dye- wood Company, 99 NLRB 78. STURTEVANT MILL COMPANY and LOCAL 501 OF THE INTERNATIONAL ASSOCIATION OF BRIDGE , STRUC- TURAL, AND ORNAMENTAL IRON WORKERS , AFL, Peti- tioner and LODGE 264 OF DISTRICT 38, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL. Case No. l-RC-3089. June 12, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert S. Fuchs, hearing officer. The hearing officer' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to 105 NLRB No. 73.